George Will

Reinhardt, writing for the 9th's divided three-judge panel, overturned Belmontes' death sentence because the trial judge ``failed to instruct the jury that it was required to consider'' what Reinhardt considered Belmonte's ``principal mitigation evidence'' -- his aptitude for prison life. On Monday, the Supreme Court ruled 5-4 against the 9th.

Justice Anthony Kennedy, joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito, argued that there was a reasonable probability that the jury weighed Belmontes' ``future potential.'' Justice John Paul Stevens, joined by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer, dissented, arguing that because the trial judge never explicitly told the jury that it must consider Belmontes' capacity to live satisfactorily in prison, there is a ``reasonable probability'' that the jury did not.

Courts have enveloped the administration of capital punishment in so many arcane procedures that judicial opponents of capital punishment have vast latitude to speculate that a jury perhaps did not fully fathom its rights and duties, and hence the punishment is impermissible. And Steacy McConnells become afterthoughts.

There is something grotesque about an execution a quarter of a century after a crime. But there is something repellent about the jurisprudential hairsplitting that consumes decades, defeats the conclusions of juries' deliberations, and denies society the implementation of a punishment it has endorsed.

Belmontes' lawyer calls Monday's decision ``an unwelcome setback'' but cites ``other issues,'' such as the quality of Belmontes' trial lawyer, that the 9th Circuit did not address. Well, there is, it seems, always a next time.

The Supreme Court recently heard arguments in another death penalty case. The question at issue is: Jim Studer and his parents wore a button featuring a photograph of Studer's brother during the San Jose trial of the man who murdered him 12 years ago. A circuit court's three-judge panel, divided 2-1, reversed the conviction, arguing that the button interfered with the defendant receiving a fair trial because the button enunciated the ``specific message'' that the murdered man was ``the innocent party'' and that the defendant was ``guilty.''

The circuit court was the 9th. The author of that opinion was Reinhardt. Tidying up after it, and him, is steady work.


George Will

George F. Will is a 1976 Pulitzer Prize winner whose columns are syndicated in more than 400 magazines and newspapers worldwide.
 
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